US Official Position Says Hacking Is Permissible?

According to LAT’s Ken Dilanian, it is the “official position” of the US government that some kinds of hacking are “permissible.”

The official U.S. position — that governments hacking governments for military and other official secrets is permissible, but governments hacking businesses for trade secrets is not — is a tougher sell these days.

He makes the claim in an article that originally claimed Edward Snowden’s leaks have set back cybersecurity efforts, but then had to issue a correction acknowledging CISPA probably wasn’t going to happen anyway.

An article in the Feb. 2 Section A on the effects of Edward Snowden’s leaks of National Security Agency secrets said the White House backed the Cyber Intelligence Sharing and Protection Act, a cybersecurity measure. The White House threatened to veto the proposed bill in April. —

The Executive does, however, have an official policy on SIGINT: President Obama’s recent Presidential Policy Directive. But a SIGINT official position and a hacking policy are not necessarily the same thing. While hacking is one way we collect SIGINT (though I don’t think NSA has admitted to that), we also conduct hacking for offensive purposes.

Even assuming they were the same thing, Dilanian’s characterization would be a misstatement of the policy in any case.

Of course, corporations are, under US law, both “organizations” and “persons,” so this definition permits spying on foreign corporations (other intelligence documents lay this out explicitly).

And the PPD does permit the collection of foreign private commercial information to protect US and allies’ national security.

The collection of foreign private commercial information or trade secrets is authorized only to protect the national security of the United States or its partners an d allies. It is not an authorized foreign intelligence or counterintelligence purpose to collect such information to afford a competitive advantage 4 to U.S. companies and U.S. business sectors commercially.

This is, frankly, where our hypocrisy on hacking (and SIGINT) begins to fall apart, given that China would maintain that stealing our military (and energy and tech) secrets are a matter of national security, and the fact that our government maintains more nominal separation from the companies that develop such things than China does should not shield those companies from spying.

And then, finally, the limits on data collection don’t apply when the NSA is working to develop SIGINT capabilities.

it shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.

Given that some of our alleged hacking seems to support efforts to develop new hacking capabilities, this exception could prove infinitely recursive, especially given the rules on information collection in the name of cyberdefense and attacks. And of course, when we exploited Siemens’ SCADA industrial control systems to attack Iran, we used a corporate competitor’s trade secrets in the name of national security.

That is, even ignoring how America’s self-interested standard simply defines our national security in terms that legitimize our own hacking, when you get into the interaction of our intelligence to hack which serves to collect intelligence, the rules on SIGINT basically fall apart.

But hey. If the US says hacking of official government secrets is “permissible,” then maybe DOJ will withdraw the charges against Edward Snowden?

One Response to US Official Position Says Hacking Is Permissible?

Marcy, a general idea just occurred to me. Perhaps you’re already there but… would it be helpful to you for EW community to send emails to reporters such as this guy, with a link to your post? (His email is at bottom of article.) Or maybe they get “pingbacks” anyway? It would certainly be a good thing if other journalists were made aware of your superb analyses- and maybe would help make some inroads into defeating the misinformation that’s out there.